Both House and Senate ESEA Bills Allow for Opt-out Without Penalty

July 17, 2015

Both the House and Senate have passed proposed authorizations of the Elementary and Secondary Education Act (ESEA) of 1965, and both House and Senate versions have opt-out provisions that allow for states to avoid being penalized for students whose parents opt them out of federally-mandated testing.

That’s right: Both House and Senate versions of the ESEA reauthorization provide a means for students who opt out to not be counted against the “95 percent” that the state is supposed to test as a condition for receiving Title I funding.

They just go about it differently.

I realize all of this can be difficult to follow. In this post, I hope to make the issue clear.

Opt-out and ECAA

Here’s how the parental opt-out provision works in the Senate’s Every Child Achieves Act (ECAA) of 2015:

Paragraph (2) of Title I, entitled, “Academic Assessments,” (page 36 of the ECAA draft linked above) details the ECAA requirements for annual testing, including what tests are to be given and to whom. The last section of paragraph (2) is subparagraph (K), which is the text of Isakson’s first opt-out amendment, which was approved in the Senate ed committee in April 2015 (page 52 of the ECAA draft linked above):

(K) RULE OF CONSTRUCTION ON PARENT AND GUARDIAN RIGHTS.—Nothing in this part shall be construed as preempting a State or local law regarding the decision of a parent or guardian to not have the parent or guardian’s child participate in the statewide academic assessments under this paragraph.

In other words, nothing in this part, comprised of more than paragraph (2) on academic assessments and paragraph (3) that follows related to Title I, shall be seen as preventing state or local law regarding parental rights to opt out ofthe statewide tests that states are required to administer as part of Title I funding.

This is the parental opt-out provision in ECAA, and its inclusion as part of paragraph (2) is key. Keep that in mind.

(B) DESCRIPTION OF SYSTEM.—Each State plan shall describe a single, statewide State accountability system that will be based on the challenging State academic standards adopted by the State to ensure that all students graduate from high school prepared for postsecondary education or the workforce without the need for postsecondary remediation and at a minimum complies with the following: …

(vi) Measures the annual progress of not less than 95 percent of all students, and students in each of the categories of students, who are enrolled in the school and are required to take the assessmentsunder paragraph (2) and provides a clear and understandable explanation of how the State will factor this requirement into the State-designed accountability system determinations. [Emphasis added.]

Students “required to take the assessments under paragraph (2)” include those whose parents have not opted them out according to state or local law, as noted in subparagraph (K) of paragraph (2).

There it is: the opt-out provision in ECAA.

Moreover, Senator Isakson’s second opt-out amendment to ECAA, SA 2194 (approved by a vote of 98-0 on July 14, 2015), requires districts to inform parents of state or district opt-out policies:

At the beginning of each school year, a local educational agency that receives funds under this part shall notify the parents of each student attending any school receiving funds under this part that the parents may request, and the agency will provide the parents on request (and in a timely manner), information regarding any State or local educational agency policy, procedure, or parental right regarding student participation in any mandated assessments for that school year….

The ECAA opt-out provision is not stated as clearly as is the opt out provision in the House version of the ESEA reauthorization, the Student Success Act (SSA), but it is there, nonetheless. The difference is that the ECAA opt-out is left up to the states to decide– in contrast to the House version, which has already made the decision for the states.

‘‘(xiii) be administered to not less than 95 percent of all students, and not less than 95 percent of each subgroup of students described in paragraph 18 (3)(B)(ii)(II), except that States shall allow the parent of a student to opt such student out of the assessments required under this paragraph for any reason and shall not include such students in calculating the participation rate under this clause;

Again, in contrast to the Senate opt-out version, which leaves the opt-out decision up to states, the House version of its opt-out has already decided for states that they are to allow parents to opt their children out of federally-mandated testing.

The Important Takeaway

But here is the important takeaway:

There will be no federal revoking of Title I funding for states or districts that provide for parents to opt out of mandated testing under ECAA, and there will be no revoking of Title I fundingfor parents who opt out of mandated testing under SSA regardless of state opt-out policy.

Neither House nor Senate opt-out sets states up to have to choose between allowing students to opt out of testing and meeting the federal, “95 percent of students testing” requirement.

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Nice, but neither allows a parent to decide, it only lets individual States to decide without penalty. I live in Tennessee. You know the South. My State legislature is now owned by corporate money. Do you think my State is going to let parents opt out without penalty (in public school, of course, not those ‘home schooled’ or in the ‘private sector’)? I’m not satisfied that this is all that great a victory.

I love that you have come to dedicate you life to working for the kids (the future People). I love that you have the tenacity (and background) to dig deeply into the machinations of those bent upon destroying public education in our country. Be careful, though, about accepting a pea’s removal from beneath your mattress as a sign of great progress. We need a major change, not the removal of peas, or else we are just ‘triangulating’ in order to try to inspire hope, the approach that brought us into this sorry state.

But, I remain one of your greatest admirers, and couldn’t imagine putting in the work you do to help us all. Thank you so much.

Actually this blog is incorrect. The text being referring to was adopted during markup and is a rule of construction and doesn’t do anything. It merely emphasizes that parents have a right to opt out, but that “right” does not contradict the federal requirement of participation. If 95 percent of students are not tested, Title I funds will be at risk. No students will be able to be discounted from the 95 percent requirement under the Senate bill. The second amendment voted on from the floor states that schools must inform parents upon request of all required assessments, not just state assessments. This came directly from a Senator when asked about these two amendments.

The purpose of a rule of construction is to clarify how language is to be construed, or to clarify ambiguity. Paragraph (2) just outlined Title I testing and who is expected to participate. With the current emergence of opting out, the rule of construction clarifies that states are not to read paragraph (2) and assume that its contents preempt (prevent) state opt-out law governing parental decisions about having their children take the tests in question. So, the rule cannot mean nothing, especially since the court will consider the inclusion of the language should a state take the federal government to court over it. The federal government knew there was ambiguity on the opt-out; the federal government included the rule of construction; so, if for example the court considers the rule as contra proferentem, it will be interpreted against the interests of those who insisted that the clause be included– in this case, likely against the interest of the ECAA crafters who want the 95 percent of students testing.

As it was explained to me this rule does not remove the requirements of 95% and does not remove students from eligible test takers for reasons other than the already defined exemptions. Parent opt out would thus be permitted but not counted as an exemption from those eligible and would count against the 5% participation allowance for school, district, and state accountability.

Kevin, I actually heard this from the office of a Washington Senator when a friend inquired about the amendments.

“Permitted but not counted as an exemption” is in practice “not permitted.” Let states write their opt out policy into their Title I applications. Then we’ll see if the federal govt has the nerve to reject the applications– if it comes to that given that both House and Senate versions are to become a single negotiated bill.

Mercedes, our Governor Markell in Delaware just vetoed our opt-out bill on Thursday (or Wednesday depending on where you check). It was pretty disgraceful. Our House passed it with an overwhelming majority, as well as our Senate. We had some slickster legislators (the heads of both the education committees) try to throw some amendments on and stop the bill, but they failed miserably. They were working with our VERY corporate education reform DOE the whole time. Parents were livid about all the obstacles they continually tried to put up the whole time, along with our friendly neighborhood charter supporting “non-profits”. We have a DOE and State Board that will do whatever our Governor tells them to do and they don’t seem to be able to think for themselves. Luckily, our Governor leaves in January 2017, so hopefully the powers that be will be kicked to the curb and we can start a new and friendlier DOE, and perhaps with an elected State Board of Education and not a Governor appointed one. So much of the “threats” we hear in our state and the feds are just that…threats. The whole 95% threshold is a mixed bag. On one hand, it says states MUST honor it, but on the other, it doesn’t say one word in either state or federal law about parents opting their kids out. Both explicitly say schools and teachers can’t do it, but not parents. So the whole threat of federal funding cuts is about as useful as blowing air into a fan…

Those are the Senators I was talking about MHS: Carper and Coons, the Delaware Senators who voted no on Lee’s awesome amendment. The night before (or at the same time depending on how you look at it) Governor Markell vetoed the opt-out bill in Delaware.

ECAA Isakson amendment: West Virginia does not have an opt out law on the books at this time. The language in the amendment includes the phrase “in accordance with state and local law”. What happens in this case? Does this keep the parent or guardian from opting out their children? Can the State Board/Department of Education deny the opt out on the grounds that the state has no opt out provision in the law?

I am still amazed at how we allow our legislators to be bullied in Washington by their peers and not tarred and feathered by their constituency at home for kowtowing. The fenom is, and they know it, only 3 percent of Americans are engaged or care what they do. The 97 percent left, with a margin of error of 1 to 2, will be just as submissive under this sudo democracy. That will more than allow them to carry on their charred of government of the people they have enslaved with money the corporate cronies have lobbied out of our federal budget for their pet projects to continue lining their bloated pockets. We need an enormous “opt out” campaign to start right now to call their hand on denying “our” funding, the dollars they have been stealing in taxes through mandates and regulatory fees. When the dollars stop flowing either way, there will be a demand for action. Our campaign: OPT OUT, END THEIR CONTROL. Thanks Mercedes, your awesome.

Right now, with NCLB, Arne Duncan is able to hold the 95 percent testing mandate over states through his NCLB waivers and the threat of states’ being in default of the conditions to receive Title I money. In the ECAA, there will be no federal “holding over the head” of Title I money for states for opt-outs regarding the “95 percent” requirement. But the opt out is at the discretion if states in ECAA, and the states must make their position on the issue known to parents at the beginning of each school year, according to ECAA. If states do not do so, they would be considered to have breached the terms for receiving Title I money.

I think your reading of the ECAA opt-out language is correct. I would just clarify that I don’t think the term “this part” in subparagraph (K) is a reference to the paragraph (2) that subparagraph (K) is nested under. “This part” means “Part” A of the ESEA, which runs from Section 1111 through Section 1127. So the “nothing in this part” language has a much broader scope: It doesn’t mean “nothing in Section 1111(b)(2),” but rather “nothing in Sections 1111 through 1127.”

Flerp, there are two tables of contents at the outset of this document. The table of contents expressly using “part” as a designation does not fit the document outline. The only exception is in Title X, which has a clear Part A and Part B.

The first table of contents is just the table of contents for the ECAA itself. The second table of contents is the table of contents for the ESEA. That ESEA table of contents is itself part of the ECAA. See page 5 starting at line 13 (Section 5 of the ECAA amends the ESEA’s table of contents, which table of contents is Section 2 of the ESEA.) The second table of contents is the one that matters for your analysis, because the provisions you’re analyzing are amendments to the ESEA, and their internal cross-references use the structure of the (as-amended) ESEA. Does that make sense?

This is one of the reasons it’s so difficult to make sense of these bills. First, there’s no outline-style indentations to help make sense of the structure. Second, you’ve got at least two different statutory structures that you have to go back and forth between. Frankly, I think it would be a good idea to require all bills coming out of the Senate or the House to be available in RTF format as well as PDF format, with the statutory structure bookmarked. It’s almost as if they don’t want people to understand these bills.

Do you have any information about amendment 2112 filed by Bennett in the Senate bill but that was never formally introduced? This amendment, essentially the GREAT Act that Bennett has been pushing since 2011 to help channel public money into supporting private teacher ed programs like RELAY, is a part of the House bill. Does anyone know if this is likely to be included in the final compromise bill?

Ms. Schneider: Thanks very much for your continued work, particularly in an area that seems quite lacking in such depth of analysis. I guess it’s that old “Western critical thinking” stuck in my head, but I would like to hear more from others far more knowledgeable than I with their “take” concerning the wording in both versions. That might be asking too much, given my aforementioned lack of such analysis.

Meanwhile, what might be the result of ECAA on testing/fed funding/penalties for the past school year? What happens to schools/districts with 2014-2015 opt-outs rates too high for 95% participation? Does this kill the threat, or at least give sizable legal credence to lawsuits seeking to prevent follow-through on those threats? Asking for a friend, so to speak…